Thorpe v. Fischer

Appellate Division of the Supreme Court of New York

Thorpe v. Fischer

67 A.D.3d 1101, 889 N.Y.S.2d 690

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 5, 2009

StatusPublished

Cited by12 cases

This text of 67 A.D.3d 1101 (Thorpe v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thorpe v. Fischer, 67 A.D.3d 1101, 889 N.Y.S.2d 690 (N.Y. Ct. App. 2009).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Correction officers observed a number of inmates engaged in a violent physical altercation in the recreation yard. When the inmates ignored directives to stop, chemical agents were used to restore order. Petitioner was identified as one of the inmates involved in the incident and, as a result, was charged [1102]*1102in a misbehavior report with fighting, engaging in violent conduct, disturbing the order of the facility and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Initially, to the extent that petitioner asserts that the testimony relied upon by the Hearing Officer was contradictory and inconsistent, he raises an issue of substantial evidence. Upon reviewing the record, we find that the misbehavior report, related documentary evidence and the testimony of the correction personnel involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]; Matter of Wilson v Dubray, 54 AD3d 1089,1090 [2008]). The testimony of petitioner and his inmate witnesses that petitioner did not participate in the melee presented a credibility issue for the Hearing Officer to resolve (see Matter of Peana v Fischer, 54 AD3d at 1127; Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]). Moreover, we find no error in the Hearing Officer’s denial of certain inmates, as well as a nurse, as witnesses inasmuch as their testimony would have been cumulative and redundant under the circumstances presented (see Matter of Brown v Taylor, 62 AD3d 1230, 1231 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

Peters, J.P, Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Correction officers observed a number of inmates engaged in a violent physical altercation in the recreation yard. When the inmates ignored directives to stop, chemical agents were used to restore order. Petitioner was identified as one of the inmates involved in the incident and, as a result, was charged [1102]*1102in a misbehavior report with fighting, engaging in violent conduct, disturbing the order of the facility and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Initially, to the extent that petitioner asserts that the testimony relied upon by the Hearing Officer was contradictory and inconsistent, he raises an issue of substantial evidence. Upon reviewing the record, we find that the misbehavior report, related documentary evidence and the testimony of the correction personnel involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]; Matter of Wilson v Dubray, 54 AD3d 1089,1090 [2008]). The testimony of petitioner and his inmate witnesses that petitioner did not participate in the melee presented a credibility issue for the Hearing Officer to resolve (see Matter of Peana v Fischer, 54 AD3d at 1127; Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]). Moreover, we find no error in the Hearing Officer’s denial of certain inmates, as well as a nurse, as witnesses inasmuch as their testimony would have been cumulative and redundant under the circumstances presented (see Matter of Brown v Taylor, 62 AD3d 1230, 1231 [2009]; Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

Peters, J.P, Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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67 A.D.3d 1101, 889 N.Y.S.2d 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorpe-v-fischer-nyappdiv-2009.

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